A Case for Recognition

194. The Need to Recognise Aboriginal Customary Laws. The Commission concludes that the arguments in favour of recognition establish a case for the appropriate recognition of Aboriginal customary laws by the general legal system. Non-recognition of Aboriginal laws and traditions in the past has been a significant source of injustice to Aboriginal people, and recognition is still desirable to avoid injustice and to acknowledge the reality of Aboriginal traditions and ways of life. The Commission believes that recognition in appropriate ways is fully consistent both with fundamental values of non-discrimination and equality for all Australians, and with ensuring basic human rights.[1] Far from contravening basic human rights, appropriate forms of recognition would be an expression of the need to recognise the human rights and cultural identity of Aboriginal people.[2] Special measures for recognition of Aboriginal customary laws will not be racially discriminatory, nor will they involve a denial of equality before the law, or equal protection, provided certain principles are followed.[3] Other more general arguments against recognition are not persuasive.[4] More often than not they are objections to particular forms of recognition than to any form of recognition at all. However, arguments about recognition do impact on the Commission’s approach, on the ways in which its proposals are framed, and on the legal forms acknowledgement of Aboriginal customary laws should take. These questions are dealt with in this Chapter.

[1]See para 127.

[2]See para 193.

[3]See para 165.

[4]See para 113-26.